United States v. Getto

• Decision Date: 09 September 2013
• Docket Number: No. 11–1237–cr.,11–1237–cr.
• Citation: 729 F.3d 221
• Parties: UNITED STATES of America, Appellee, v. Matthew GETTO, Defendant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

729 F.3d 221

UNITED STATES of America, Appellee,
v.
Matthew GETTO, Defendant–Appellant.

No. 11–1237–cr.

United States Court of Appeals,
Second Circuit.

Argued: Oct. 24, 2012.
Decided: Sept. 9, 2013.

[729 F.3d 224]

Stephanie M. Carvlin, Law Office of Stephanie M. Carvlin, New York, NY, for Matthew Getto.

Steve C. Lee (Avi Weitzman, Justin S. Weddle, Assistant United States Attorneys, on the brief), Assistant United States Attorney, for Preet Bharara, United States Attorney for the Southern District of New York, for the United States of America.

Before: CABRANES, SACK and CARNEY, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge:

Getto, an American citizen, appeals from a March 29, 2011 judgment of conviction entered by the United States District Court for the Southern District of New York (Harold Baer, Jr., Judge ), sentencing Getto to 150 months' imprisonment and imposing restitution in the amount of $8,200,000. We consider: (1) whether the District Court erred in denying defendant Matthew Getto's motion to suppress evidence obtained through searches and surveillance undertaken in Israel by the Israeli National Police (“INP”), following a Mutual Legal Assistance Treaty (“MLAT”) request by American law enforcement; and (2) whether the District Court committed procedural error in calculating Getto's sentence.

We hold that ongoing collaboration between an American law enforcement agency and its foreign counterpart in the course of parallel investigations does not—without American control, direction, or an intent to evade the Constitution—give rise to a relationship sufficient to apply the exclusionary rule to evidence obtained abroad by foreign law enforcement. Consequently, the District Court correctly denied Getto's motion to suppress the evidence gathered through foreign searches and surveillance. We further conclude that the District Court committed procedural error in failing adequately to explain the sentence it imposed. Accordingly, we affirm Getto's conviction, but remand the cause to the District Court with instructions to vacate Getto's sentence and resentence him in a manner consistent with this opinion.

[729 F.3d 225]

I. BACKGROUND

Following an October 18, 2010 bench trial on stipulated facts, Getto was convicted of a single count of conspiracy to commit mail fraud and wire fraud through telemarketing, in violation of 18 U.S.C. §§ 1349, 2326(2). Getto's conviction stemmed from his involvement in a conspiracy that had defrauded American victims through a lottery telemarketing scheme operated out of three so-called “boiler rooms” at different locations in Israel. A member of the conspiracy would purchase batches of lottery tickets containing the contact information of lottery entrants, which lotteries and sweepstakes typically sell to legitimate businesses for marketing purposes. The conspirators, billing themselves as lawyers or other staff working for a fictional lottery, then called unsuspecting lottery entrants and told them that they had won substantial cash prizes in an international sweepstakes. Under this guise, the conspirators would gather further information about the lottery entrants—such as their age and finances—to target, in particular, wealthy, elderly victims. At the last step, they would tell their targets that certain “taxes and fees” needed to be paid at the outset. The unwitting victims would then be asked to send the sums to the conspirators in the hopes of obtaining the phantom cash prize.

The workers in the three boiler rooms were organized into groups, based on function, with corresponding levels of compensation. “Qualifiers” would call the victims in the first instance to obtain personal and financial information. ¹ If the victims met certain criteria, their information was then passed along to “Shooters.” Shooters had the more delicate task of informing the victims that they had won a prize and of persuading them to send money. To do this, Shooters would often pose as employees of a fake law firm or as officials from the Internal Revenue Service, even going so far as faxing their targets fraudulent documents as part of the ruse.² Shooters would also often repeatedly bilk the same victims, claiming, for instance, that the prize had doubled and additional fees needed to be paid.³ The operations at each boiler room were ultimately overseen by “Managers,” who kept records, distributed proceeds, and assisted in swindling the victims.

Getto joined the conspiracy in October 2007, as a Shooter in a boiler room on Ha'Arad Street in Tel Aviv, Israel (“Ha'Arad room”). At the time, there was only one other boiler room, which was located in Eilat, Israel (“Eilat room”). In March 2009, Getto leased an additional boiler room, located on Ha'Negev Street in Tel Aviv (“Ha'Negev room”). He served as both a Manager and a Shooter in the Ha'Negev room; he also had an ownership stake in the Ha'Negev room, which entitled him to a greater share of its profits.

Sometime in late 2008, based on a tip from a witness in the United States, the Federal Bureau of Investigation (“FBI”) initiated an investigation into the conspiracy. Operating undercover, FBI agents planted “dummy” lottery tickets containing their own contact information in shipments bound for an identified conspirator, and posed as victims when subsequently contacted

[729 F.3d 226]

by members of the conspiracy in early 2009. This tactic allowed the agents to trace the telephone numbers and bank accounts used by the conspirators.

On April 20, 2009, American law enforcement authorities filed a request, pursuant to the MLAT between the United States and Israel ⁴ for the Israeli National Police to investigate the conspiracy. As part of the MLAT request, the FBI provided the INP with the details of the investigation in the United States, including Israeli phone numbers belonging to suspected conspirators. Using this information, the INP conducted an investigation that began by identifying a “SIM” ⁵ card associated with one of the suspects' phone numbers, and by interviewing employees at Tel Aviv restaurants called on the number (who directed the INP to the address of the Ha'Negev boiler room) and the superintendent of the building where the Ha'Negev room was located. The INP then sought, and received, Israeli court authorization to install a clandestine surveillance device in the Ha'Negev room and to search it. Based in part on the evidence gathered from the Ha'Negev room, Getto was arrested in the United States in July 2009.

Before the District Court, Getto moved to suppress the evidence gathered by the INP as inadmissible. He claimed that, although evidence obtained abroad by foreign law officials is not ordinarily subject to suppression, he was entitled to exclusion of the evidence because (1) the INP was working jointly with the FBI, and (2) “the actions of the INP in obtaining the evidence were sufficient [ly] egregious to trigger application of the Fourth Amendment.” Appellant's Br. 9. On August 25, 2010, the District Court denied the defendant's motion to suppress without an evidentiary hearing. United States v. Getto, No. 09 CR 667(HB), 2010 WL 3467860 (S.D.N.Y. Aug. 25, 2010). Following a bench trial on stipulated facts, the District Court found Getto guilty on October 28, 2010. United States v. Getto, No. 09CR667(HB), 2010 WL 4449514 (S.D.N.Y. Oct. 28, 2010). On March 25, 2011, the District Court sentenced Getto to a term of 150 months' imprisonment, followed by three years' supervised release, and restitution in the amount of $8,200,000, a sum based on the loss amount and the number of victims swindled by workers in all three boiler rooms.

This timely appeal followed.

II. DISCUSSION

Getto asserts two claims on appeal: (1) the District Court should have granted his motion to suppress the foreign evidence ⁶; and (2) the District Court committed

[729 F.3d 227]

procedural error by sentencing him, without sufficient explanation, based on the offense conduct of conspirators in all three boiler rooms. We consider each claim in turn.

A. Suppression of Foreign Evidence

Our “standard of review for evaluating the district court's ruling on a suppression motion is clear error as to the district court's factual findings, viewing the evidence in the light most favorable to the government, and de novo as to questions of law.” United States v. Voustianiouk, 685 F.3d 206, 210 (2d Cir.2012).

We recently had occasion to review the scope of the Fourth Amendment's exclusionary rule with respect to foreign police actions and held that “suppression is generally not required when the evidence at issue is obtained by foreign law enforcement officials.” ⁷United States v. Lee, 723 F.3d 134, 140 (2d Cir.2013); see also United States v. Busic, 592 F.2d 13, 23 (2d Cir.1978) (“[T]he Fourth Amendment and its exclusionary rule do not apply to the law enforcement activities of foreign authorities acting in their own country.”). In reaffirming the general rule against suppressing evidence collected by foreign law enforcement authorities abroad—a rule occasionally referred to as the “international silver platter doctrine,” see Lee, 723 F.3d at 139 n. 3 (noting “the substantive viability of the international silver platter doctrine, if not the clarity of its moniker”)—

[729 F.3d 228]

we also noted our recognition of “two circumstances where evidence obtained in a foreign jurisdiction may be excluded[:] [f]irst, where the conduct of foreign officials in acquiring the evidence is so extreme that it shocks the judicial conscience and second, where cooperation with foreign law enforcement officials may implicate constitutional restrictions.” Id. at 140 (internal quotations marks and alterations omitted). On appeal, Getto concedes the continuing vitality of the general rule, but claims that the facts of the instant case require suppression of the fruits of the search on the basis of both exceptions set forth above. Appellant's Br. 43.

We first consider Getto's claim that the INP's...